Airwick design rights ruling could lead to further appeal

A trademark lawyer has condemned a design rights ruling made last week by the Court of Appeal, saying it is ‘bad news for designers’, despite it being met with enthusiasm from Anti Copying in Design.

In the Procter & Gamble vs Reckitt Benckiser case, the Court of Appeal overturned a previous ruling that Reckitt’s Airwick pack infringed P&G’s Febreze bottle design.

‘Personally, I am somewhat surprised that Reckitt Benckiser won the appeal, considering its similarity to Procter & Gamble’s design,’ says Simon Bentley, a member of the design commit tee of the Institute of Trade Mark Attorneys. ‘The result of this case is bad news for designers, since it narrows the scope of protec tion for design rights.’

This is one of a handful of cases that have made it to court since new regulations were introduced in 2002 to make it easier for companies to litigate on the grounds of design rights infringement.

Anti Copying In Design chief executive Dids MacDonald has described the ruling as ‘ground breaking’, saying that ‘it allows people to talk about points of difference in design rather than just points of similarity, Lord Justice Jacob having signpos ted a number of differences between the two designs. The overall impression of an object can be more clearly defined since this ruling’.

Bentley remains unconvinced, and says, ‘The question remains: how do you test what the overall impression of an object is?’

He expects to see the case go to the European Court of Justice. ‘In my opinion, this is probably not the last we are going to hear about this case,’ he says. ‘P&G and Reckitt have plenty of money to fund another appeal at the House of Lords. Ultimately, we are going to need guidance on how to interpret the design rights legislation from the final arbiter in these cases, the European Court of Justice.’